Teacher Claims First Amendment Rights
Phelps Says Letter Protected by Freedom of Speech

PASADENA

A teacher suspended from his job because he stated in a letter that most poorly behaved students at his school are African Americans said he believes he is within his First Amendment right to say so.

But experts disagree on whether the broadest protections granted under the First Amendment, allowing freedom of speech, extend to school teachers.

Muir High School science teacher Scott Phelps was placed on paid administrative leave last week for claiming in a three- page letter that "Overwhelmingly, the students whose behavior makes the hallways deafening, who yell out for the teacher and demand immediate attention in class, who cannot seem to stop chatting and are fascinated by each other and relationships but not with academics ... are African American.'

The statements have created an uproar - and a division of opinion - among the educational community and beyond.

But Rich McKee, president of the California First Amendment Coalition, said Phelps was only giving his personal observations.

"This is a government agency, so he is protected by the First Amendment,' said McKee, "If he were to go to a board meeting, during public comments he could say whatever he wanted to and he would be protected. You can knowingly give false information as long as it's not malicious and still be protected.

"And you're telling me he's not protected for writing a letter?'

"They don't have any reason to fire him,' McKee said of the Pasadena Unified School District. "Education officials, the state government and the federal government report statistics on gender, race and ethnicity constantly and that's basically what (Phelps) is doing.

"He may be doing it anecdotally, but he has every right to do that.'

But USC law professor Erwin Chemerinsky disagrees. He said Phelps will have a difficult time proving he was within his rights when he distributed the letter.

"Public employees and teachers are protected under the First Amendment, but they're limited,' he said. "If what they say interferes with the operation of the school, then they're aren't protected.'

Chemerinsky said it then becomes a case of school interests vs. speech interests.

A case in point recently took place in Sacramento, where a teacher was fired for telling his class that America got what they deserved on Sept. 11, 2001, said Northern California-based education attorney Rich Kitchens.

"I thought it was strange (that he got fired), but in the climate we're in, the First Amendment has gotten hit pretty hard,' Kitchens said.

Kitchens said in most cases, if a teacher is talking about something of public concern then it's covered by the amendment.

"His argument is going to be that he was making the comment as an issue of public concern, and right now there is a lot of discussion in the educational field about whether school districts are serving all children,' he said. "Then again, it weighs against the disruption he's caused.'

Phelps, who denies being racist, said he was only trying to point out in the letter that African Americans have different behavioral patterns than other groups at the school.

"The mandate at the state level is that everybody must learn at the same level and same rate,' Phelps said. "I am simply pointing out that people don't learn at the same level or rate and perhaps we need to take a look at their behavioral patterns to find out why.'

The letter, made public last week, immediately caused a controversy.

School board member Ed Honowitz called it "disturbing.'

"Teachers have the right to say what they want to say, but they're are also employees,' he said. "You can't classify whole groups of kids based on stereotypes.'

But others support Phelps. Rene Amy, district critic and leader of the "Greatschools' e-mail chat- room group where Phelps first posted the letter he later copied and distributed to teachers, said it was a clear-cut case of freedom of speech.

"There are absolutely no grounds whatsoever for (the school district) to take the action they've taken,' he said. "The only reason they did what they did was out of anger from what he said.'